FIGUEROA v. THE CITY OF NEW YORK

MARILYN FIGUEROA, PLAINTIFFV.THE CITY OF NEW YORK, DEPARTMENT OF SANITATION AND ROCKY DARMIENTO, DEFENDANTS

The opinion of the court was delivered by: Shira A. Scheindlin, U.S. District Judge

OPINION AND ORDER

Marilyn Figueroa brings this action pursuant to 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e, against The City of New York, the City of New York
Department of Sanitation ("Sanitation Department"), and Rocky Darmiento,
manager and supervisor for the Sanitation Department.*fn1 Figueroa seeks
compensatory
damages and attorney's fees stemming from twenty-three
separate causes of action alleging sexual harassment, discrimination,
disparate treatment, and retaliation.*fn2 Defendants move for summary
judgment on four grounds: (1) any claims which arose prior to August 21,
1998, 300 days before plaintiff filed charges with the New York State
Division of Human Rights ("NYSDHR"), are time barred; (2) the incidents
alleged by Figueroa do not constitute a hostile work environment; (3)
Figueroa has failed to establish a prima facie case of gender
discrimination; and (4) there is no evidence that any adverse employment
actions that occurred after she filed her discrimination complaint with
the Sanitation Department were causally connected to the filing of that
complaint. For the reasons set forth below, defendants' motion for
summary judgment is granted in part and denied in part.

I. FACTS

Figueroa has been a sanitation worker since 1993, working as a
mechanical broom operator. See Defendants' Local Civil
Rule 56.1 Statement ("Def. 56.1")*fn3 ¶ 1. After one year, her mandatory
probationary period was extended for three months, due to several
complaints filed against her. See 6/7/01 Deposition of Marilyn Figueroa
("6/7 Fig. Dep."), Ex. 27 to Declaration of Gregory Kuczinski ("Kuczinski
Decl."), at 36-37.

In March 1994, a fellow sanitation worker refused to transport Figueroa
to her post, and stated "[b]etter yet, put her in the bucket of the front
end loader and transport her in there." See Affidavit of Figueroa ("Fig.
Aff."), Ex. 2 to Kuczinski Decl., at 2; 6/14/01 Deposition of Figueroa
("6/14 Fig. Dep."), Ex. 28 to Kuczinski Decl, at 37-43.

In August 1995, Figueroa attempted to put on work gloves when she
discovered several condoms stuffed inside. See Fig. Aff. at 2; 6/14 Fig.
Dep. at 14-19, 63-64. She filed a grievance with the Sanitation
Department, which investigated the incident. Because it was unable to
identify those responsible, it reprimanded the entire garage. See Def.
Rule 56.1 ¶ 9; 6/7 Fig. Dep. at 14-16; Deposition of Rocky Darmiento
("Darmiento Dep."), Ex. C to Defendants' Notice of Motion for Summary
Judgment ("Def. Not."), at 102; 8/21/95 Unusual Occurrence and Accident
Report ("Report"), Ex. P to Def. Not.

On September 7, 1995, Figueroa received a written complaint for failing
to obey her supervisor who had ordered her to take lunch at 10:40 a.m.
See 9/7/95 Sanitation Department Complaint, Ex. Q. to Def. Not. As a
result, she received a reprimand for violating Rule 3.1 of the Sanitation
Department Code of Conduct — failure to obey a direct order. See
1/25/88 Sanitation Department Code of Conduct, Ex. N to Def. Not., at 3;
7/18/96 Sanitation Department Plea to the Docket, Ex. R. to Def. Not.
Figueroa alleges that these rules were not applied evenly, and that the
violation brought against her was in retaliation for her sexual
harassment complaints. See Fig. Aff. at 3-4.

During the time between approximately September 1995 and mid-1996, two
sanitation routes were available, which Figueroa claims were to be
assigned to workers in accordance with seniority. See Contract and
Collective Bargaining Agreement Between the Union and the City of New
York, Article VI, Section 4(b)(i)("Contract"), Ex. 1 to Kuczinski Decl.
On both occasions, Figueroa was passed over and the routes were assigned
to less senior male co-workers. See 6/7 Fig. Dep. at 65-74. She
subsequently filed a grievance with the Sanitation Department. See 9/96
Report, Ex. 9 to Kuczinski Decl.

In July 1996, Figueroa applied for the position of back-up clerk, a
temporary position that did not involve any increase in pay. See Def.
56.1 ¶¶ 12, 14. The job involved computer and administrative
responsibilities in the garage office. See Darmiento Dep. at 103-04;
Deposition of William C. Ford ("Ford Dep."),*fn4 Ex. D to Def. Not., at
102-03; Equal Employment Opportunity Complaint, Ex. IT to Def. Not., at
5. Defendants claim that Figueroa was not selected for this position
because her computer knowledge was inferior. See Darmiento Dep. at
103-04. Pigueroa, in turn, responds that her alleged lack of knowledge
about computers was a pretext for defendants' gender discrimination and
retaliation against her. See 6/7 Fig. Dep. at 62-64.

From March 1997 through February 1999, Figueroa received at least ten
written complaints, for such things as failure to obey orders and to
appear for work. See Def. 56.1 ¶¶ 19, 20, 23, 26, 28, 29, 30, 35, 36,
37, 43; Written Complaints, Exs. U, V, KK, SS, X, Y, Z, CC, DD, EE, LL to
Def. Not. Figueroa denies the validity of these charges, and claims that
some of them were filed in retaliation for her filing of sexual
harassment complaints. See Plaintiff's Response to Def. 56.1 ¶¶ 19,
20, 23, 26, 28, 29, 30, 35, 36, 37, 43.

In the Winter of 1997, Figueroa was working on Randall's Island when
two male co-workers made sexual comments concerning screws in a snow
plow. See 6/7 Fig. Dep. at 49-54. In June 1998, Figueroa was not informed
that her supervisor changed her work schedule.*fn5 See 6/14 Fig. Dep. at
4-9. Consequently, she was sent home without pay. Id. 6/15/98 Report,
Ex. 10 to Kuczinski Decl. She subsequently filed a grievance with the
Sanitation Department. See 7/3/98 Report, Ex. 11 to Kuczinski Decl. In
July 1998, Darmiento made a comment to Figueroa regarding her pants and
the way they fit. See 6/14 Fig. Dep. at 20-22.

On July 28, 1998, Figueroa filed a discrimination complaint with the
Department of Sanitation's Office of Equal Employment Opportunity
("OEEO"). See sanitation Department, OEEO Complaint of Discrimination,
Ex. AA to Def. Not. In March 1999, the OEEO issued its investigative
findings, concluding that Figueroa was not treated unfairly or improperly
based on her sex. See OEEO Investigative Findings, Ex. II to Def. Not.,
at 10-11. The OEEO office did find, however, that Figueroa had
experienced "sexually harassing inappropriate behavior on the job,"
referring to the incident with condoms in the gloves. Id. at 11. The OEEO
found that the Sanitation Department had taken immediate corrective and
appropriate action. Id.

On or about August 4, 1998, Figueroa was re-assigned to work at a
different facility. See 6/14 Fig. Dep. at 51-56. This re-assignment
occurred after the customary time deadline for such a change (i.e. 2:10
p.m.), without proper notice to her. Id.

In October 1998, Figueroa was riding in a truck during the usual course
of her duties. She was followed by five supervisors riding in four
different vehicles. See id. at 56-63. She subsequently filed a grievance
with the Sanitation Department. See 5/18/99 Report, Ex. 12 to Kuczinski
Decl. According to defendants, it is customary practice that supervisors
follow sanitation workers while they are performing their duties. See
Ford Dep. at 27-30; Deposition of Ronnie Cooper, Ex. L to Def. Not., at
56-57; Deposition of Thomas Rodak, Ex. F to Def. Not., at 20-21;
Deposition of Richard Suarez, Ex. G to Def. Not., at 35-37; Deposition of
Rafael Gomez, Ex. H to Def. Not., at 19.*fn6 Also in October 1998,
Figueroa was accused (wrongfully, she claims) of being ten minutes late
to work. See 6/14 Fig. Dep. at 64-68. Her supervisor said to her "[n]ext
time you better be here or you'll see what happens. I will get you off
this route." Id.

In November 1998, Figueroa asked a clerk to place her name on the work
chart to indicate her availability on November 16, 1998. See id. at
42-51. Because the clerk failed to do so, plaintiff was not permitted to
work that day. See id. Following a grievance to her union, she was
allowed to work that day, but she was transferred to a different
facility. See id.

In February 1999, while on light duty, Figueroa was sent to run errands
outside of her assigned district and her schedule was indiscriminately
changed, all against established custom and practice for those assigned
to light duty with the seniority privileges that she was entitled to.
See id. at 68-76.

On June 4, 1999, Figueroa was waiting at the designated afternoon
meeting point with a co-worker when she observed a supervisor, Van
Bomma, sitting in a vehicle approximately one block away. See id. at
77-82. She left the meeting point to return to her garage at which point
Van Bomma approached Figueroa's co-worker to sign his attendance card and
give the appearance that Figueroa did not appear for the afternoon
meeting. See id.

On June 8, 1999, Figueroa reported to work at 6:20 a.m. for the 7:00
a.m. shift. See id. at 4-10. She was informed by her supervisor that she
had been scheduled for the 6:00 a.m. shift and was sent home without
pay. See id. She had not been informed of the shift change, as required by
the custom and practice of the Sanitation Department. See id. She made a
grievance to a union representative who later spoke to Supervisor
Bogfilio about the situation. See id. Bogfilio assigned Figueroa to clean
up the street corners, a job reserved for workers who perform such duties
in order to receive welfare checks. See id.

On June 12, 1999, Figueroa was threatened by Van Bomma, who stated that
he would formally complain that Figueroa was untimely in appearing for
the afternoon meetings. See id. at 66-68. On the same day, a male
co-worker, who failed to appear for the afternoon meeting, was not
reprimanded in any manner. See id.

On June 17, 1999, Figueroa filed a charge of discrimination, sexual
harassment, and retaliation with the NYSDHR. See NYSDHR Complaint of
Discrimination, Ex. JJ to Def. Not. There is no evidence in the record of
the results, if any, of this complaint.

On July 17, 1999, Figueroa was threatened with a "blanket party" by an
unknown colleague who was dressed in a common sanitation uniform. 6/14
Fig. Dep. at 104-106. According to Figueroa, a blanket party is "where
they all get together and beat you down." Id. at 105.

In November 1999, Figueroa's application to be an enforcement officer
with the Sanitation Department was denied. See 6/14 Fig. Dep. at 26. She
claims that it was denied despite her qualifications, and that a male
colleague who was junior to her got the job. See id. at 26-28. She claims
that she was told by Inspector Diffendale that she would be accepted into
the next class of enforcement officers. See id. at 38. When passed up for
that next class, ...

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